EXCLUSIVE: EMails Show Prop. 8 Judge Sought Ted Olson’s Advice On Whether to Attend Supreme Court Argument on Gay Marriage
Vaughn R. Walker, the judge who struck down Proposition 8, California’s gay marriage ban, sought Ted Olson’s opinion regarding whether Walker should attend next week’s Supreme Court arguments on the gay marriage cases. Olson was one of the lawyers who successfully persuaded Judge Walker to strike down Proposition 8 after a trial held in 2010.
In December 2012 emails obtained exclusively by Patterico.com, Judge Walker, who retired in February 2011, asked Olson’s law partner to “ask Ted if he thinks my attending the argument would be an unwanted distraction.”
Above: Retired federal judge Vaughn Walker, who struck down Proposition 8, seeks Ted Olson’s opinion as to whether he should attend next week’s Supreme Court arguments on gay marriage.
When Olson’s law partner responded that Olson thought Walker’s attendance would be a “potential distraction,” Walker agreed not to go, saying he understood Olson’s reaction and was not surprised by it. Walker described himself as “only moderately disappointed not to see the argument,” and added: “Ted’s argument will be spectacular, I’m sure.”
Above: Retired federal judge Vaughn Walker. Photo credit: Mike Kepka, San Francisco Chronicle
Although the emails likely breach no ethical rules — Walker retired in 2011 — they do suggest a cozy relationship between Walker and Olson that some observers may find revealing. Walker seeks Olson’s opinion regarding attending the argument, defers to Olson’s judgment, and praises Olson’s legal skills. Walker’s demeanor in the emails is that of a well-wisher who wishes to make sure Olson’s argument is not disrupted, rather than that of an impartial former jurist. It is difficult to imagine that Walker sent a similar email to the defenders of Proposition 8, seeking their opinion as to whether it would be appropriate for him to attend.
Walker and Olson’s partner have not responded to requests for comment.
The emails can be read here (.pdf). The identity of Olson’s partner has been redacted, as well as the email addresses of all participants.
The first email was sent by Olson’s law partner at Gibson, Dunn, & Crutcher to Vaughn Walker on Friday, December 7, 2012. In the email, Olson’s partner forwarded a news alert from the Wall Street Journal, announcing that the Supreme Court had decided to take up the gay marriage cases. The partner’s email read, in its entirety: “Well, well…..the day of reckoning approaches. Should be very interesting.” The email’s brevity and friendly tone suggest the existence of a social acquaintanceship between Walker and Olson’s partner, a conclusion that is confirmed in later emails.
Above: Ted Olson, one of two lead attorneys for the team that successfully won a ruling from Vaughn Walker striking down Proposition 8.
Walker responded later that evening, saying that he had received a “barrage of media calls” that day, which he had mostly “managed to duck” because he was in a mediation. Walker added:
If you get a chance and it’s not out of line, you might ask Ted if he thinks my attending the argument would be an unwanted distraction. I won’t be hurt if the answer is “yes.”
The following Monday, December 10, 2012, Olson’s partner responded. The email is worth quoting at length:
Vaughn, Ted and I have discussed this over the weekend and, reluctantly, we do think it would be a potential distraction for you to attend the argument, now scheduled for March 27. There will be a heavy press turnout and you are very likely to be recognized and asked to comment. Even if you refuse, your attendance will likely be covered and your personal situation, even though now irrelevant, again reported on.
Ted, David [Boies], and AFER [the American Foundation for Equal Rights] are discouraging demonstrations or other “media events” in connection with the argument as they are concerned with negative reactions from some of the Justices. While your simply coming to observe the argument certainly isn’t intended as a “media event,” it might take on that character. My friend, you are just too well known to slip quietly into the Supreme Court chamber unnoticed. I’d like to attend myself but I’m told that the demand for tickets will be so great we aren’t even sure we can accommodate all of the trial team and Olson/Boies immediate families.
Here is a screenshot of the response from Olson’s law partner:
Above: Ted Olson’s partner explains Olson’s media strategy to retired Judge Vaughn Walker
(The “personal situation” Olson’s partner refers to is Walker’s years-long romantic relationship with a man, which Walker spoke of openly after the decision was rendered. Walker faced heavy criticism from supporters of Prop. 8 during the case. They speculated that Walker wanted to marry his partner, and accordingly might benefit from a ruling striking down Prop. 8. Another judge later ruled that Walker had been under no obligation to reveal whether he wanted to marry his partner before deciding the case. Walker’s conduct of the case also came under public scrutiny when he announced that the trial would be publicly broadcast through a live feed accessible at federal courthouses in four states. Prop. 8 supporters had argued that their witnesses would be subject to retaliation — a realistic fear given that Prop. 8 opponents have engaged in boycotts, outing of home addresses, and other retaliation against supporters of the measure. The Supreme Court issued an order striking down Walker’s plan to broadcast the proceedings.)
Having been told about Olson’s media strategy, and that his attendance might undermine that strategy, Walker agreed not to attend, and said that he believed “Ted’s” argument would be “spectacular”:
Thanks for touching base with Ted about this. I am not surprised, understand fully and only modestly disappointed not to see the argument. Ted’s argument will be spectacular, I’m sure.
Walker concluded the email with an invitation for Walker, Olson’s partner, and others to get together at Christmastime.
VERIFYING THE EMAILS’ AUTHENTICITY
Patterico.com was provided these emails yesterday by a trusted source. The source indicated that they could not reveal where they had obtained the emails, but did say that the emails were obtained in a legal manner. It is impossible to verify to an absolute certainty that they are authentic, but several aspects of the emails withstand scrutiny.
The emails were provided to Patterico.com in an unredacted form, which allowed verification of the email addresses used. The email address for Olson’s partner is indeed a genuine email address. A Google search of the email address for Walker shows that it is associated with two Web domains. One, VRWalkerCo.com, was registered in May 2002. The other, JudgeWalker.com, was registered on March 14, 2011, about a month after Walker retired. Neither domain appears to currently host a web site. The administrative contact for both domains is Vaughn R. Walker of San Francisco.
Patterico.com received these emails yesterday morning, and emailed both Walker and Olson’s law partner within hours, at the email addresses set forth in the emails, requesting comment. A lawyer with Olson’s law firm called Patterico.com yesterday evening to ask for details about the emails, and said he would attempt to contact Olson’s partner to see if he would be willing to speak about them. As of the publishing of this post, however, neither Walker nor Olson’s partner has yet responded to requests for comment.
Patterico.com did not have a chance to contact any of the parties defending Proposition 8, in part because the proprietor was asked to keep the matter strictly confidential until the post was published. (The source did agree to have Patterico.com attempt to contact Walker and Olson’s partner before publication.)
THE EMAILS’ SIGNIFICANCE
This blog post is a piece of journalism, breaking a story that should be of public interest regarding the conduct of a former jurist on a significant case. This site does not advocate an anti-gay rights agenda, and the proprietor of this web site is a supporter of gay marriage (although he disapproves of the imposition of gay marriage on society through judicial fiat).
Nor does this web site assert that Walker, Olson, or Olson’s partner has engaged in any breach of legal ethics. Walker’s views on the decision are no secret: he has spoken since retirement of his belief that the case was appropriately brought and that his decision was correct. It is not shocking that a judge would defend a decision he has already made.
But the behavior of Walker, as revealed by these emails, creates the appearance of a partisan rather than an impartial former jurist who simply believes he issued a correct ruling. Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. Specifically, he sought to learn whether his attendance at the appellate arguments would be acceptable to the prevailing party — and when told it would not be, he deferred to the prevailing party’s media strategy. All of this, cumulatively, suggests an emotional investment in the outcome of the case. The emails are likely to reinforce the widely held perception among Prop. 8 supporters that Walker was less than impartial in his rulings during the trial.
The Supreme Court hears the gay marriage cases next week, on March 26 and 27.